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2023 DIGILAW 64 (GUJ)

Sama Ishakbhai Mahebubbhai v. State of Gujarat

2023-01-07

GITA GOPI

body2023
ORDER : 1. The present petition has been preferred with prayer to quash and set aside the criminal complaint being FIR M Case No.1 of 2016 dated 02.03.2016, registered with Radhanpur Police Station, Patan for the offence punishable under Sections 498(A), 494, 496, 506(2) and 114 of the Indian Penal Code as well as other consequential proceedings arising out of the aforesaid FIR qua the present petitioners. 2. The report of the Police Inspector, Radhanpur Police Station has been filed by learned APP with the statement recorded of Pravinabanu daughter of Nurmohamad Chauhan, dated 05.01.2023. As per the report, the complainant – Pravinbanu Wife of Nurmahamad Sama had moved before the Judicial Magistrate, First Class, Radhanpur by filing a Criminal Inquiry No.06 of 2016 and the Hon’ble Court by outward (Javak) No.240 of 2016, dated 01.03.2016 had passed an order for an inquiry under Section 156(3) of the Criminal Procedure Code, and the report thus states that in pursuance of the order on 02.03.2016, at about 16.30 hours, the offence came to be registered. 2.1 The report also states that the marriage of the complainant was with the accused Sama Ishakbhai Mahebubbhai in the year 2006, and her husband had informed her that after a few days he was to marry and threatened her to do whatever she can, and it is stated that thereafter the mobile came to be switched off. It is further alleged that accused Nos. 2 & 4 had threatened her to do away with her life, and therefore, the complaint came to be filed stating that during the subsistence of the marriage, second marriage was conducted. 2.2 Today, report is produced alongwith statement of the complainant, recorded on 05.01.2023, which shows that the complainant and her father Nurmohammad Abubhai Chauhan, have amicably settled the dispute with the accused and the complainant has already received divorce from the accused Sama Ishaqbhai, and in view of the settlement, she does not want to pursue the complaint. [3] Mr. Y.J.Patel, learned advocate referring to the facts of the case stated that the parties to the disputes belong to the Muslim community, hence, Sections 494 and 496 of the Indian Penal Code would not be attracted in the matter. [3] Mr. Y.J.Patel, learned advocate referring to the facts of the case stated that the parties to the disputes belong to the Muslim community, hence, Sections 494 and 496 of the Indian Penal Code would not be attracted in the matter. He further stated that earlier a criminal complaint as C.R.No.II- 3069 of 2011 was filed and after leading the evidence, all the accused persons came to be acquitted vide an order dated 26.08.2014 passed by the learned Judicial Magistrate, First Class, Patdi, and against that, the complainant had preferred an appeal under Section 378 of the Cr.P.C.; while the said order of acquittal was confirmed by an order dated 06.12.2014 by learned Additional Sessions Judge, Dharngadhra and subsequently again, the respondent No.2 moved before the J.M.F.C. Patan, where the order under Section 156(3) of the Cr.P.C. was passed, which Mr.Patel stated that, it was bad in law; and submitted that learned Magistrate ought to have kept the complaint before him and should have made his own inquiry, then the fact would have been detailed out that earlier on the very same ground the complaint was filed, and the ground as raised under sections 498A & 3 of the IPC and 3 & 7 of the Dowry Prohibition Act, Criminal Case No.145 of 2013 was filed; and on 26.08.2014, Judicial Magistrate, First Class, acquitted the accused and the same order was confirmed on 06.12.2014 in Criminal Appeal No.12 of 2014 by Additional Sessions Judge, Dhrangadhra. 4. Advocate Ms.Zeel Raval for Mr.Malav Mulani, learned advocate for respondent no.2 states that, the police has recorded the statement of the complainant and her father, which under instructions, is true and the complainant and her father have amicably settled the issue, and they do not want to pursue the matter. 5. This Court, while verifying the facts, had called for report of the police and the statement to be recorded of the concerned person and in compliance of the order dated 04.01.2023, the report has been produced alongwith the statement of Pravinabanu, Nurmuhmad daughter of Nurmuhamad Chaughahn and statement of Nurmuhamad Chauhan recorded by Police Inspector, Radhanpur Police Station on 05.01.2023. The complainant has stated that they had socially settled the issue, and she has taken divorce from her husband and there are no any disputes left between them and all the grievances are resolved. The complainant has stated that they had socially settled the issue, and she has taken divorce from her husband and there are no any disputes left between them and all the grievances are resolved. 5.1 The statement of her father suggests that C.R.No.3069 of 2011 was registered under Section 498A of the IPC and sections 3 & 7 of the Dowry Prohibition Act before Patan Police Station by his daughter, and thereafter daughter moved an application before Radhanpur Police Station being M Case No.1 of 2016 under Section 498A, 494, 496, 506(2) & 114 of the IPC was instituted and the daughter has also filed a suit for maintenance. The father has also affirmed of the divorce between his daughter and accused No.1 - Sama Ishkbhai Mahebubbhai. 6. The impugned M Case No.1 of 2016 dated 02.03.2016 registered before the Radhanpur Police Station, Patan is under Sections 498A, 494, 496, 506(2) & 114 of the IPC. The proceeding suggests that earlier Criminal Case Nos.141, 145 of 2013, under Section 498A of the IPC and Sections 3 & 7 of the Dowry Prohibition Act and the FIR as C.R.II No.3069 of 2011 was decided. The accused were husband and the brother-in-law and all were acquitted, and acquittal was confirmed. In spite of that fact again on the very same ground, the impugned FIR No.M/1 of 2016 was registered. As per the police report, the said M Case No.1 of 2016 was registered under the order of the learned Magistrate under Section 156(3) of the Cr.P.C. 7. The provisions of Section 498A of the IPC thus invoked in the FIR would be matter of double jeopardy. The accused were already ordered to be acquitted by the learned Judicial Magistrate and the said acquittal was confirmed by the Appellate Court. 7.1 Another sections which had been invoked in M Case No.1 of 2016 are 494, 496, 506(2) 114 of the Indian Penal Code. The parties to the disputes belong to the Muslim community. As per the complainant, she had married with accused No.1, nine years prior to the complaint; accused No.2 is father-in-law, accused No.3 is mother-in-law and accused No.4 is younger brother-in-law. Out of the wedlock, they had a son and because of the dispute arose, she has filed maintenance under the Domestic Violence Act, which is still pending. 8. As per the complainant, she had married with accused No.1, nine years prior to the complaint; accused No.2 is father-in-law, accused No.3 is mother-in-law and accused No.4 is younger brother-in-law. Out of the wedlock, they had a son and because of the dispute arose, she has filed maintenance under the Domestic Violence Act, which is still pending. 8. As per the allegation, one month prior to the complaint, the accused No.1 has threatened her that he would be performing another marriage within few days and threatened her to do whatever she likes and thereafter, the mobile was switched off. Further allegation is that on 11.12.2015, when they were in Radhanpur Court, accused No.1 informed him that he has already performed another marriage and rest of the accused have threatened her for withdrawal of the case, or else face dire consequences. The complainant has alleged that though the marriage was alive without her consent against the Rules of Muslim Shariat Law, accused No.1 has performed another marriage under the abetment of accused Nos. 2 & 3 and thereby had caused mental and physical cruelty. 9. In the case of Lily Thomas and Ors. Vs. Union of India & Ors. reported in (2000) 6 SCC 224 , cognizance of offence of bigamy under Section 494 of the Indian Penal Code is taken only on complaint of person aggrieved as specified in Section 198 of Cr.P.C. As laid down, the person having right to make complaint would have to be identified on the basis of the personal law applicable to the complainant and the accused. It has been observed that important words in Section 494 of the IPC are “marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife”, indicates that the offence can be said to be constituted only where second marriage is shown to be void for the reason that it has taken place in the lifetime of the original husband or wife. Further, it has been held that the words “husband or wife” are important because they indicate that personal law applicable to them would continue to be applicable as long as their marriage subsists. 10. Further, it has been held that the words “husband or wife” are important because they indicate that personal law applicable to them would continue to be applicable as long as their marriage subsists. 10. Here, in this case, it appears that merely on the ground alleged that the accused No.1 husband had informed the complainant that he would be performing second marriage within few days and thereafter, he shut down his mobile, she assuming the said fact has given the complaint, while no specific details have been given in the FIR; and the impugned FIR does not show where, how and with whom, the accused No.1 has performed his second marriage. 11. As observed in the case of Lily Thomas (supra), Muslim law as traditionally interpreted and applied in India permits more than one marriage during the subsistence of one and another though capacity to do justice between co-wives in law is a condition precedent. It has been further noted that even under the Muslim law, plurality of marriages is not unconditionally conferred upon the husband. It would, therefore, be doing injustice to Islamic law to urge that the convert is entitled to practise bigamy notwithstanding the continuance of the marriage under the law to which he belonged before conversion. 11.1 It has been laid down that prosecution under Section 494 of the Indian Penal Code in respect of second marriage under Mohammedan law can be avoided only if the first marriage was also under the Mohammedan law and not if the first marriage was under any other personal law, where there was a prohibition on contracting a second marriage in the lifetime of the spouse. 12. Here in this case, both the complainant and the accused are from same community and personal law does not prohibit second marriage, provided it could be considered that such marriage is approved with the concept of justice of equality amongst the wives; while in this case, no details have been given about second marriage performed by the accused. 13. Since the factum of second marriage has not been clarified in the complaint, Section 494 of the Indian Penal Code thus would not be attracted in the present matter and consequently, the provisions of Section 496 would also not get attracted since no details have been provided of any marriage ceremony undertaken by the accused to further infer any dishonest or fraudulent intention. Even taking into consideration the fact that the issues have been settled and the complainant does not want to pursue with the complaint and further earlier proceedings under Section 498A of the Indian Penal Code and under the Dowry Prohibition Act leading to acquittal of the accused clarifies the fact that the matrimonial cruelties have not been proved, the FIR is required to be quashed. 14. Resultantly, the present application is allowed and the impugned FIR M Case No.1 of 2016 dated 02.03.2016 registered with Radhanpur Police Station, Patan and all other consequential proceedings arising out of the aforesaid FIR are also quashed and set aside qua the applicants.